State v. Finneman, 916 N.W.2d 619

Law enforcement executed a search of a residence shared by Jesseaca Finneman and her roommate and seized marijuana (over 500g), hashish, paraphernalia, and cash. Both occupants were charged; prosecutions were consolidated for trial.
Finneman testified she possessed the drugs for personal use, denied intent to deliver, and requested a lesser-included instruction for simple possession.
The district court gave an "acquittal first" lesser-included instruction but provided a verdict form in Finneman’s case that blacked out the "Not Guilty" line for the greater offense (possession with intent to deliver) and required a staged process to reach the lesser offense.
During deliberations the jury asked whether the blacked-out box meant Finneman was automatically guilty; the court answered by referring them to the elements instruction and the forms instruction.
The jury initially returned an incomplete verdict form, saying they thought they only had to answer the first item; after clarification and further deliberation the jury convicted Finneman on all counts.
On appeal Finneman challenged only the conviction for possession of more than 500 grams of marijuana with intent to deliver, arguing the verdict form misapplied the law and confused the jury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the verdict form and instructions properly implemented the "acquittal first" transition from greater to lesser included offense	State: The instructions and verdict form, read together, adequately directed the jury to follow the staged procedure; no showing of prejudice	Finneman: The blacked-out "Not Guilty" box for the greater offense and the complex staged instructions misapplied the law and confused the jury, affecting her substantial rights	Reversed: The blacked-out box was a plain, obvious deviation from law, affected substantial rights, and warranted reversal to protect trial fairness

State v. Wilson, 676 N.W.2d 98 (N.D. 2004) (jury instructions are fully reviewable on appeal)
State v. Jahner, 657 N.W.2d 266 (N.D. 2003) (instructions must correctly inform and not mislead the jury)
State v. Barth, 637 N.W.2d 369 (N.D. 2001) (review instructions as a whole)
State v. Holly, 833 N.W.2d 15 (N.D. 2013) (possession is a lesser included offense of possession with intent to deliver)
State v. Daulton, 518 N.W.2d 719 (N.D. 1994) (adopting "acquittal first" procedure for lesser-included offenses)
State v. Huber, 555 N.W.2d 791 (N.D. 1996) (discussing lesser-included instruction procedures)
State v. Olander, 575 N.W.2d 658 (N.D. 1998) (plain-error framework for forfeited instructional errors)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (framework for plain-error review)
United States v. Amaya, 731 F.3d 761 (8th Cir. 2013) (verdict form that omits place to mark guilty or not guilty can constitute plain error requiring a new trial)